Can a Delaware agency charge a $198 cost estimate to compile records that the requester believes should be readily available?
Plain-English summary
Attorney Richard Abbott asked DelDOT for "tab sheets" identifying ongoing real-estate-acquisition projects (project names, parcel numbers, takings, owners). DelDOT responded with a $198 cost estimate covering five hours of agent time across pay grades 14 and 17. Abbott argued the estimate was inflated, pointing to a 2019 production he'd received at no cost.
DelDOT met its burden. It supplied a sworn affidavit from the Chief of Right of Way, who:
- Explained that tab sheets are kept in individual project files spanning multiple years, not in a central index, and that recent growth in the Capital Transportation Program had increased the search burden.
- Identified the staff selected as the "lowest-paid employees within Right of Way with the experience, training and capability" to do the search and emphasized that lower-pay-grade employees couldn't perform the work without higher-grade oversight that would push the estimate up.
- Broke out the hours by pay grade and waived one hour of the higher-grade time.
The AG concluded that the estimate complied with 29 Del. C. § 10003(m)(2), which allows administrative fees for "staff time associated with processing FOIA requests, including, without limitation: identifying records; monitoring file reviews; and generating computer records." The agency must use "the lowest-paid employee capable of performing the service" and may not include time spent on legal review.
What this means for you
If you've gotten a FOIA cost estimate and want to push back
Two grounds usually work. Cost estimates fail when the agency:
- Cannot justify the hours. A bare invoice without explanation should be challenged. Demand specifics: which files, how many, why staff time is needed.
- Cannot justify the pay grade. The "lowest-paid employee capable" rule has teeth. If the agency assigns a pay-grade-17 employee to a file pull a clerk could do, you can argue the rate is wrong.
What does not usually work:
- Pointing to a different (cheaper or no-charge) production the agency made years ago. Past behavior, even by the same agency, does not bind future estimates. DelDOT successfully explained that the 2019 production was a one-off "internal error."
- Insisting that the records "must be" centrally located when the agency swears under oath that they are not. The Delaware Supreme Court in Judicial Watch v. Univ. of Del. allows attorney representations to satisfy the burden in some cases, but a sworn agency-officer affidavit is even stronger evidence and very hard to overcome without contrary evidence.
If you handle FOIA for a Delaware agency
This opinion is a template for defensible cost estimates. Key elements:
- Sworn affidavit. Get a knowledgeable supervisor (not the FOIA coordinator) to attest to records storage, staffing, and time. Judicial Watch makes this important when there's any factual dispute.
- Identify the lowest-grade-capable employees. Explain why a lower grade can't do the work without supervision that would offset any savings.
- Break out hours by task and grade. "Two hours at grade 14 to identify project files; three hours at grade 17 to compile tab sheets" is more defensible than a lump sum.
- Waive what you can. A modest waiver (one hour at the higher rate, here) signals good faith.
- Exclude legal review. Section 10003(m)(2) explicitly bars billing for legal-review time.
- Provide a deadline for payment. DelDOT's ten-day window was respected; a closed request can be reopened on payment.
If you are a private practitioner using FOIA on real-estate or land-use matters
Decentralized records are common in this space. Project files, tab sheets, takings tables, and right-of-way maps tend to live with the project team, not in a search-friendly index. Build in costs and time when you advise clients about FOIA-driven discovery on a takings dispute.
If you are evaluating cost estimates as a journalist or watchdog
The "lowest-paid employee capable" rule is your friend, but the agency gets to define "capable." If you can show that a categorically lower grade has done similar work in other instances, you have an argument. In practice, agencies rely on supervisors' judgments and the AG defers to that under sworn affidavit.
Common questions
Q: Can an agency charge for the time it takes to identify records?
A: Yes. Section 10003(m)(2) explicitly allows administrative fees for "identifying records, monitoring file reviews, and generating computer records." Time spent locating records (especially when records are decentralized) is billable.
Q: Can the agency charge me for legal review of records before release?
A: No. Section 10003(m)(2) prohibits charging for legal-review time. If your bill includes that, push back.
Q: How does the "lowest-paid employee" rule actually work?
A: The agency must use the lowest pay grade of an employee capable of doing the task. "Capable" is judged by training, experience, and the practical ability to do the work without supervision that would offset any savings. The AG has not strictly second-guessed this judgment when accompanied by an affidavit.
Q: I got a different price for similar records last year. Why?
A: Cost estimates are case-by-case. They turn on current staffing, current file organization, and current request scope. Past pricing is not binding.
Q: Can I propose to do the search myself?
A: Sometimes. Inspection-based requests (where you visit and review the files) can avoid administrative fees. Some agencies allow this; some do not. Ask.
Q: Can the agency reject my request entirely if I don't pay?
A: Effectively yes. The statute treats payment as a precondition to fulfilling a fee-bearing request. DelDOT here closed the request after the ten-day window passed; it offered to reopen on payment.
Q: What's a "tab sheet" in DelDOT real-estate parlance?
A: A project-specific table summarizing the parcels involved in a planned right-of-way acquisition: project name, parcel numbers, takings, owners, and addresses. Useful background for anyone tracking what land DelDOT plans to acquire.
Q: What if I think the agency is over-quoting to chill my request?
A: Demand a sworn affidavit, then challenge specific line items. Filing a petition without specific evidence will probably not succeed, but a targeted challenge to a particular pay-grade or hour estimate sometimes does.
Background and statutory framework
Delaware FOIA's cost provisions are at 29 Del. C. § 10003(m)(2). Three rules govern:
- Itemized estimate before fees are incurred. The agency must provide the estimate before doing the work, allowing the requester to "proceed with, cancel, or modify" the request.
- Lowest-paid capable employee. Charges must be at the "current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service."
- Minimization. The agency must "make every effort to ensure that administrative fees are minimized" and "minimize the use of nonadministrative personnel."
The Delaware Supreme Court's 2021 decision in Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, made clear that conclusory attorney representations may not satisfy § 10005(c)'s burden-of-proof obligation. A "statement made under oath, like a sworn affidavit, will ensure that the court's determination regarding the public body's satisfaction of the burden of proof is based on competent evidence." This raised the bar for FOIA defense and is reflected in DelDOT's use of a sworn affidavit here.
Citations and references
Statutes:
- 29 Del. C. § 10003 (Access to public records; cost provisions)
- 29 Del. C. § 10005 (Enforcement; burden of proof)
Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit may be required for burden of proof
Source
- Landing page: https://attorneygeneral.delaware.gov/2022/11/28/22-ib45-11-28-2022-foia-opinion-letter-to-richard-l-abbott-re-foia-complaint-concerning-the-delaware-department-of-transportation/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/11/Attorney-General-Opinion-No.-22-IB45.pdf
Original opinion text
KATHLEEN JENNINGS
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB45
November 28, 2022
VIA EMAIL
Richard L. Abbott
[email protected]
RE: FOIA Petition Regarding the Delaware Department of Transportation
Dear Mr. Abbott:
We write regarding your correspondence alleging that the Delaware Department of Transportation ("DelDOT") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that DelDOT did not violate FOIA as alleged, because DelDOT met its burden of proof to support its estimated costs to compile the records requested.
BACKGROUND
On August 15, 2022, you requested "tab sheets for DelDOT projects that are in the real estate acquisition process." Your request stated that the tab sheets should include "project names and numbers, parcels from which acquisitions are to be made to construct the project, areas of taking being acquired, and names and addresses of parcel owners." On September 1, 2022, DelDOT responded, stating that the tab sheets are not in a centralized file and will require searching multiple years' worth of files to find responsive documents, which must be done manually. With this response, DelDOT supplied a cost estimate of three hours at paygrade 14 with an hourly rate of $36.39 and two hours at paygrade 17 with an hourly rate of $44.50, for a total estimated cost of $198.17. DelDOT noted that an hour of costs had been waived in preparing the estimate. If payment was not made in ten days, DelDOT stated the request would be considered withdrawn. You replied that it was "impossible to believe" that DelDOT does not know the properties in the acquisition process and questioned how DelDOT could track the acquisition process without having the cost tabs already prepared. DelDOT replied that compiling the tab sheets requires searching for the relevant materials, as they are not maintained in a single location. In response, you suggested that DelDOT contact the head of the Real Estate Section, who you believed must have these tab sheets. On October 4, 2022, DelDOT stated that its cost estimate is compliant with FOIA and as the date for payment had passed, closed your request. DelDOT offered to reopen it if you made payment. This Petition followed.
The Petition alleges that DelDOT has imposed unreasonable and unnecessary administrative charges because you believe the requested documents are "readily available for easy and convenient copying." You state your belief that the records are likely available in hard copy and electronic formats. You enclosed some tab sheets you received from DelDOT in 2019 at no cost as an example. You argue that this cost estimate is over-estimated and imposes a barrier to your access to public documents, which you are entitled to as a citizen of Delaware. You ask this Office to instruct DelDOT to prepare a more realistic analysis of the time to copy these tab sheets and send them to you.
DelDOT, through its counsel, responded on November 2, 2022 to the Petition ("Response"), contending that it attempted to minimize the costs of providing records as required by the FOIA statute. Based on a review of its FOIA logs, DelDOT states that the last time you made similar requests for tab sheets occurred in 2017, 2018, and 2019. DelDOT explains that in 2017 and 2018, you were quoted, and paid, fees associated with those requests, and in 2019, DelDOT failed to assess a cost due to an internal error.
For this August 15, 2022 request, DelDOT asserts that the request was referred to the head of the Real Estate Section, the Chief of Right of Way, who provided an affidavit with the Response. The Chief noted that DelDOT does not maintain the records in a central location and DelDOT has experienced an increase in projects in the Capital Transportation Program; further, pending projects may require the review of multiple years of records. The Chief states he selected staff who had the training and capability to pull the requested tab sheets and he prepared the estimate based on the number of projects and after conferring with staff, estimating six hours of time to research and compile the responsive records: three hours of Right of Way Agent III time and three hours of Right of Way Agent IV time. The Chief further attests that "[t]here is no lower pay grade employee within Right of Way with the experience, training and knowledge who can efficiently and expeditiously review the project files, identify the Tab Sheets, and compile them for production without requiring additional oversight and review by higher pay grade Right of Way agents, which would then increase the cost estimate." In reaching its final estimate, DelDOT waived one hour of administrative time for the higher Right of Way agent rate. Thus, DelDOT maintains that its estimate is fully compliant with FOIA, as it excludes time for legal review, lists the charges with specificity as to pay grade and time required, and involves the lowest-paid employee capable of performing the service.
DISCUSSION
The public body carries the burden of proof to demonstrate compliance with the FOIA statute. In certain circumstances, a sworn affidavit may be required to meet that burden. FOIA permits public bodies to charge certain fees to fulfill a request for records and provides that "[p]rior to fulfilling any request that would require a requesting party to incur administrative fees, the public body shall provide an itemized written cost estimate of such fees to the requesting party, listing all charges expected to be incurred in retrieving such records." In determining fees, the statute provides that "[c]harges for administrative fees may include staff time associated with processing FOIA requests, including, without limitation: identifying records; monitoring file reviews; and generating computer records (electronic or print-outs)." However, administrative fees may not include any cost associated with the public body's legal review of whether any portion of the requested records is exempt from FOIA. Further, the public body is obliged to "make every effort to ensure that administrative fees are minimized, and may only assess such charges as shall be reasonabl[y] required to process FOIA requests" and must "minimize the use of nonadministrative personnel in processing FOIA requests, to the extent possible." Administrative fees must be billed at the "current hourly pay grade (prorated for quarter hour increments) of the lowest-paid employee capable of performing the service." "Upon receipt of the estimate, the requesting party may decide whether to proceed with, cancel, or modify the request."
You argue that the charges in the cost estimate are unnecessary and unreasonable, because you believe it cannot possibly take five hours to pull records you think should be readily accessible. DelDOT supplied the affidavit of the Chief of Right of Way, who oversees the DelDOT staff involved in the acquisition and disposal of real property. The Chief attests that the records are not located centrally; rather, these records are kept in individual project files for proposed or ongoing projects, which may span multiple years and that each file must be checked to locate and compile responsive records in these files. The Chief swears that he prepared the estimate based on his own knowledge and consultation with staff and determined that it would take six hours for two Right of Way agents to research and compile the records. He asserts that the staff was the "lowest level DelDOT Right of Way employees who have both access to, training on and the capability to review the various project files and plans and pull the requested documentation." The Chief further attests that "[t]here is no lower pay grade employee within Right of Way with the experience, training and knowledge who can efficiently and expeditiously review the project files, identify the Tab Sheets, and compile them for production without requiring additional oversight and review by higher pay grade Right of Way agents, which would then increase the cost estimate." Based on this record, we find that DelDOT met its burden of proof to support its estimated costs to compile the tab sheets.
CONCLUSION
For the foregoing reasons, we determine that DelDOT did not violate FOIA as alleged, because DelDOT met its burden of proof to support its estimated costs to compile the tab sheets.
Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General
cc: George T. Lees, III, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General